Marcus: Passionate plea can be a reality

Published 9:35 pm, Wednesday, February 20, 2013

Will President Barack Obama say to the Supreme Court what he said to the American people in his second inaugural address about same-sex marriage?

Obama's remarks were striking. First, that he dared to broach what was once a hot-button issue in such a high-stakes venue. Second, that he phrased the argument for same-sex marriage so passionately. Third, and perhaps most important, that he did so in a way that conflicted with his previous discussion of the issue.

Even as he completed his evolution in favor of same-sex marriage, Obama had earlier framed the issue as a matter of democratic choice: a right he supports but one that also should be left to individual states.

"Different communities are arriving at different conclusions, at different times. And I think that's a healthy process and a healthy debate," he told ABC's Robin Roberts last May. "I continue to believe that this is an issue that is going to be worked out at the local level, because, historically, this has not been a federal issue, what's recognized as a marriage."

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Obama sounded far different at his second inaugural. "Our journey is not complete," he said, "until our gay brothers and sisters are treated like anyone else under the law — for if we are truly created equal, then surely the love we commit to one another must be equal as well."

He understood full well the constitutional implications of this statement. Obama could have spoken about gay rights. Instead, he used language that implicates the question of marriage equality.

And language that is hard to reconcile with his previous, leave-it-to-the-states approach. The 14th Amendment guarantee of equal protection of the laws means mandating the same treatment in Mississippi as in Massachusetts.

Obama knew this, and something else: The Supreme Court is about to confront the constitutional right to same-sex marriage. The case involves California's Proposition 8, the voter referendum overturning the state Supreme Court's ruling in favor of same-sex marriage.

The justices can decide the Prop 8 case without answering the ultimate question, either by deciding that those defending the measure lack legal standing or by focusing on the unusual facts of the case, that same-sex couples in California enjoyed the right to marriage before it was taken away. At this stage in the legal debate, a narrower ruling may be wise.

The administration isn't required to intervene in the California case. It has its own gay rights case at the Supreme Court this term, in which the administration, wisely, is arguing against the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriage even in states where it is legal.

In 1967, when the Supreme Court was weighing the constitutionality of anti-miscegenation laws, the Solicitor General, which represents the government before the justices, did not file an amicus brief in the case, Loving vs. Virginia.

Yet as the deadline for filing an amicus brief in the California case approaches, it cannot be lost on Obama that his parents' marriage would have been illegal in Virginia had the court not acted in Loving. Is he comfortable being silent in this case?

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In the DOMA litigation, Obama directed the Justice Department to stop defending the law after concluding that classifications based on sexual orientation are subject to "heightened scrutiny."

Under this standard of review, laws that discriminate against gays and lesbians must be, in the court's words, "substantially related to an important government objective."

Prop 8 defenders argue that denying marriage to same-sex couples "furthers society's interest in responsible procreation and child-rearing," but they have a hard time explaining how. The administration has argued that the procreation rationale doesn't suffice to justify DOMA; would it say the same of Prop 8?

Hearing from the administration is crucial because the Prop 8 defenders, in a brief, cite Obama's comments about the "healthy debate" occurring in the states in defense of letting the law stand.

And especially given the president's words last month:

"If we are truly created equal, then surely the love we commit to one another must be equal as well."

A president who speaks so eloquently at his inaugural cannot allow his administration to remain silent before the court, where words are translated into reality.